The
petitioner, a state prisoner who is proceeding pro
se, seeks habeas corpus relief pursuant to 28 U.S.C.
§ 2254. Pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.),
this magistrate judge is authorized to review post-trial
petitions for relief and submit findings and recommendations
to the District Court.

BACKGROUND

The
petitioner is currently incarcerated at Lieber Correctional
Institution in the South Carolina Department of Corrections
(doc. 1 at 1). He was indicted by the Williamsburg County
Grand Jury in October 2009 for one count of criminal sexual
conduct (“CSC”) with a minor in the first degree
and one count of CSC with a minor in the second degree
(2009-GS-45-249) and for the same counts in an amended
indictment in January 2010 (app. 347-50).[1] On January 25,
2010, the petitioner went before the Honorable Clifton Newman
for a plea hearing. The plea hearing broke down when the
petitioner told the trial court he did not wish to waive his
right to trial. The State thereafter called indictment
2009-GS-45-249 to trial that same day (app. 7, 17). At trial,
Richard Strobel represented the petitioner. Kimberly Barr
appeared on behalf of the Third Circuit Solicitor's
Office for the State (app. 9).

Underlying
Case Facts

The
following facts were testified to at the petitioner's
trial. A nurse who treated the minor testified that the
petitioner had impregnated his girlfriend's young cousin
(“victim”) (app. 64-65, 76). The victim was
eleven at the time the pregnancy was discovered. During the
trial, there was a question of fact regarding whether the
petitioner was having sex with the victim before her eleventh
birthday in 2009 (app. 166). CSC with a minor first degree
requires a sexual battery to have occurred upon a minor under
the age of eleven. S.C. Code Ann. § 16-3-655(A). CSC
with a minor second degree applies to a sexual battery with a
minor between the ages of eleven and fourteen. Id.
§ 16-3-655(B). Testimony established that the petitioner
had been engaging in sex with the victim since she was ten
years old (app. 64-66, 80, 123, 193). The victim testified
that the petitioner forced himself on her between five and
ten times beginning during the summer of 2008 (app. 125). The
victim testified that she told the petitioner to stop, but
that did not work, so she “just gave up” (app.
128). Medical examination showed that the victim had old
injuries consistent with sexual abuse and two sexually
transmitted diseases (app. 147-49). A DNA analysis conducted
with fetal tissue extracted from the victim showed that the
fetus was consistent with being the offspring of the victim
and the petitioner (app. 212). Doctors determined that the
date of conception was May 21 or 22, 2009 (app. 193).

The
petitioner's girlfriend, who was the victim's cousin,
testified on the petitioner's behalf (app. 219). The
girlfriend testified that the victim was always chaperoned by
an adult when she visited the apartment where the acts were
alleged to have occurred, and that the victim would not be at
that apartment babysitting as the victim claimed (app.
225-27). However, the girlfriend testified on
cross-examination that there was no doubt in her mind that
the petitioner had sexual intercourse with the victim (app.
237).

The
petitioner took the stand in his own defense to state that he
had not engaged in sexual relations with the victim before
February 5, 2009, but that he had engaged in sexual relations
with her after February 5, 2009, and before her pregnancy was
discovered (app. 244). The victim's birthday was February
8th (app. 59). On cross-examination, the petitioner appeared
to claim that the victim came onto him, but denied followup
questions to clarify his statement (app. 247-49). Then, he
made an admission “to intercourse with a child at
eleven” (app. 249-51).

After a
three-day trial, the jury found the petitioner guilty of both
CSC with a minor first degree and second degree (app. 283).
Judge Newman sentenced the petitioner to twenty-five years
for CSC with a minor first degree and twenty years for CSC
with minor second degree, to run concurrent (app. 307-08).
The petitioner did not pursue a direct appeal.

PCR

On
September 29, 2010, the petitioner filed an application for
post-conviction relief (“PCR”) (2010-CP-45-00389)
by and through his counsel, Tara Shurling. This application
was incorrectly filed as it pertained not only to the
indictment number upon which the petitioner was convicted at
trial, but also to a second indictment number for a separate
offense to which the petitioner pled guilty. An amended PCR
application filed June 12, 2012, did the same (app. 310-23).

On
February 25, 2013, the petitioner filed a second amended PCR
application that pertained to the proper indictment number
(app. 329-35). The petitioner made the following allegations
in his application:

(a) The Applicant received Ineffective Assistance of Counsel
prior and during his trial in violation of his rights
pursuant to the Sixth and Fourteenth Amendments to the United
States Constitution, as well as Article I, Section 14 of the
South Carolina Constitution.

a. Counsel failed to provide client effective assistance of
counsel prior to and during his trial proceeding. Inasmuch as
Counsel failed to recognize errors which occurred during his
trial, and therefore failed to make appropriate objections,
and supporting legal arguments relating thereto.
Counsel's failure to make these objections may have
changed the outcome of the Applicant's trial and deprived
him of the opportunity to have these issues addressed on
their merits on direct appeal.

(b) Trial counsel deprived the Applicant of his right to a
direct appeal by failing to file a Notice of Appeal on his
behalf following his jury trial on Indictment No.
2009-GS-45-0249.

a. Trial counsel neglected to file a direct appeal for the
Applicant and the Applicant did not knowingly and voluntarily
waive his right to a direct appeal.

(App. 331).

The
State made a return dated October 28, 2013 (app. 336-41). The
petitioner filed a third amended PCR application, alleging
the following claims:

(a) Trial Counsel was ineffective for failing to sufficiently
argue the validity of the race neutral explanations given by
the Applicant for striking jurors during the selection of the
first jury selected in his case.

(b) Trial Counsel was ineffective for failing to fully argue
against the selection of a second jury panel in the
Applicant's case where the reasons given by the Applicant
for striking the jurors in question during the State's
Batson challenge were sufficiently race neutral
pursuant to known precedent in South Carolina at the time of
the Applicant's trial.

(c) Trial Counsel was ineffective for failing to repeat and
fully articulate for the record the Applicant's reasons
for striking each of the jurors in dispute at his trial
during the Batson hearing held pursuant to motion by
the State.

(d) Trial Counsel was ineffective for failing to explain to
the Applicant that all of his reasons for striking each juror
against whom he exercised a peremptory strike had to be fully
stated for the record as to each juror when the strike used
against that particular juror was addressed during the
Batson hearing held pursuant to the State's
motion.

(e) Trial Counsel failed to provide the Applicant with
reasonable professional assistance of counsel in that he
failed to advise the Applicant, who being allowed by Trial
Counsel to participate in decisions concerning the use of
preemptory strikes in the selection of his jury, that in
order to preserve a record for appeal from the trial
court's ruling on a potential Batson motion by
the State, he needed to be prepared fully articulate his
reasons for using strikes against each juror.

(f) Trial Counsel failed to provide the Applicant with
reasonable professional assistance of counsel in that he
failed to restate for each juror addressed during the
Batson hearing the Applicant's reasons for using
strikes against each juror as articulated in Trial
Counsel's general response to the State's
Batson motion.

(g) Trial Counsel was ineffective for neglecting to exercise
peremptory strikes to remove five (5) jurors from the
Applicant's jury who had been previously struck by the
Applicant in the selection of his first jury where the
explanations given by the Applicant for the use of a strike
against each of these jurors, if properly articulated,
provided a race neutral justification for the use of a
peremptory strike against each of these jurors.

(h) Trial Counsel was ineffective for characterizing the
Applicant's reason for striking Juror number 96, Kenneth
Lancaster, as an excuse, where this statement supported the
prosecution's position that the reasons proffered by the
Applicant for striking this juror were pretextual.

(i) Trial Counsel was ineffective for failing to fully
articulate the Applicant's objection to the testimony of
State witness Barbara Greggs and for failing to present
appropriate authority in support of the Applicant's
objection to this testimony.

(j) Trial Counsel was ineffective for failing to research and
present potential character witnesses to testify in the
Applicant's behalf at trial; specifically Sgt. Robert
McClary, Debra Black, Manager at Skyes in Kingstree, South
Carolina, Sgt. Staggers, employed with the 1052nd
Transportation Company Army National Guard, and Frederick
Davis of the Kingstree Police Department.

(k) Trial Counsel was ineffective for failing to present
testimony from Sgt. Robert McClary, Army National Guard, who
would have been able to present alibi evidence for some of
the dates the Applicant was accused of committing sexual
battery upon the victim, Shataria G. and where said witness
could have presented character testimony for the Applicant.

(l) Trial Counsel was ineffective for failing to request a
continuance after a material amendment to Applicant's
indictment where the new indictment was presented to the
Grand Jury days before the Applicant's trial, and where
he was not made aware of the more serious charge brought in
the new indictment until immediately before his trial.

(App. 342-45).

The
petitioner's PCR evidentiary hearing took place on May
27, 2014, before the Honorable R. Ferrell Cothran, Jr.
Counsel Shurling appeared on behalf of the petitioner, and
Assistant Attorney General Daniel Gourley appeared on behalf
of the State (app. 363). The petitioner and his trial counsel
testified (app. 364). During testimony, Counsel Shurling
moved to amend the petition to add claims related to the
trial testimonies of Robin Griggs and Trina Hamlet (app.
487).

Judge
Cothran denied and dismissed the petitioner's application
in its entirety by order of dismissal filed August 25, 2014
(app. 511-40). On October 15, 2014, the petitioner filed a
motion to alter or amend judgment to consider, inter
alia, additional claims added to the application at the
time of the hearing (app. 541-46). The motion referenced the
petitioner's own proposed order that had been submitted
prior to issuance of the order of dismissal (app. 482-510).
The State made a return in opposition (doc. 29-4).

In an
order filed December 5, 2014, Judge Cothran granted the
petitioner's motion to alter or amend in part, adding
findings to its initial order of dismissal pertaining to the
trial testimony of witness Robin Griggs (app. 547-51). The
petitioner timely filed a notice of appeal (app. 552-53).

PCR
Appeal

Counsel
Shurling continued the petitioner's representation on PCR
appeal (doc. 29-5). The petition for writ of certiorari
presented the following issues:

I. Did the lower court err in finding [the petitioner]
knowingly and voluntarily waived his right to a direct
appeal?

II. Did the lower court err in finding that Trial Counsel was
not ineffective in his representation of Petitioner on all
the Batson related claims raised in this PCR action?

III. Did the lower court err in ruling that Trial Counsel was
not ineffective for failing to request a continuance after a
material amendment to Petitioner's indictment where the
new indictment was presented to the Grand Jury days before
the Petitioner's trial, and where he was not made aware
of the more serious charge brought in the new indictment
until immediately before his trial?

IV. Was Trial Counsel ineffective for failing to fully
articulate the Petitioner's objection to the testimony of
State witness Barbara Gregg, RN, for failing to present
appropriate authority in support of the Petitioner's
objection to this testimony and for failing to object to
hearsay testimony from State witnesses Trina Hamlet and Robin
Tyler Griggs, where said testimony was clearly hearsay and as
such violated Petitioner's right to fully confront his
accusers?

V. Was Trial Counsel ineffective for failing to object to
testimony from forensic interviewer Robin Tyler Griggs in
which she was allowed to offer expert opinion concerning the
Victim's competency at the time of her taped interview
where said testimony went beyond the scope of the expertise
for which she was qualified as a witness and improperly
bolstered the Victim's testimony?

(Doc. 29-5 at 3).

In
addition, the petition for writ of certiorari presented
additional issues in an effort to garner a belated direct
appeal pursuant to White v. State, 208 S.E.2d 35
(S.C. 1974) (in absence of timely direct appeal, a defendant
can petition the appellate court for a review of the record
to determine where a meritorious ground for appeal exists).
Those issues appeared as follows:

1. The trial court erred, and thereby violated
Petitioner's right to due process of law, by granting the
State's Batson Motion where the record reflects
that Petitioner set forth race neutral explanations for his
use of a peremptory challenge to remove each of the jurors at
issue in the State's motion.

2. The trial court erred, and thereby violated
Petitioner's Confrontation Clause of the United States
Constitution, by permitting State Witness, Barbara Gregg, to
testify to statements made to her by the Victim concerning
who the person responsible for her pregnancy was.

3. The trial court erred in allowing the State to introduce
hearsay testimony through Nurse Practitioner, Barbara Gregg,
and thereby violated Petitioner's rights pursuant to the
Confrontation Clause of the Sixth Amendment of the United
States Constitution, in which she was allowed to testify that
the Victim told her “Kevin” had been having sex
with her since she was ten years old.

4. The trial court erred, and thereby violated
Petitioner's right to due process of law, by denying his
motion for a directed verdict of acquittal on the charge of
First Degree Criminal Sexual Conduct with a Minor where the
State failed to present any direct evidence, or substantial
circumstantial evidence, that a sexual battery involving
penetration occurred before the Victim's eleventh (11th)
birthday

(Doc. 29-5 at 4).

On
November 16, 2015, the State made the return to the petition
(doc. 29-6). The petitioner, by and through counsel, filed a
reply (doc. 29-7). The Supreme Court summarily denied the
petition by order filed December 2, 2016 (doc. 29-8). The
court issued its remittitur on December 20, 2016, and it was
filed by the Williamsburg County Clerk's Office on
December 22, 2016 (doc. 29-9).

FEDERAL
PETITION

On
March 13, 2017, the petitioner filed his § 2254 petition
(doc. 1). On May 4, 2017, the petitioner filed an amended
petition, which added grounds to the original petition (doc.
21). On July 6, 2017, the respondent filed a motion for
summary judgment (doc. 28) and a return and memorandum (doc.
29). By order filed the same date, pursuant to Roseboro
v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the
petitioner was advised of the summary judgment procedure and
the possible consequences if he failed to adequately respond
to the motion (doc. 30). On September 1, 2017, the petitioner
filed his response in opposition to the motion for summary
judgment (doc. 36).

In his
federal habeas corpus petition, the petitioner makes the
following claims:

Ground One: The PCR court erred in finding
that Petitioner failed to meet his burden of proof that his
claim that trial counsel provided ineffective assistance of
counsel in that he failed to preserve Petitioner's right
to direct appeal.

Supporting Facts: Trial counsel failed to
advise petitioner of his Sixth and Fourteenth Amendment
rights to a direct appeal, thereby failing to file a Notice
of Appeal as well as failing to advise Petitioner of the
advantages and disadvantages of taking a direct appeal. Trial
counsel's testimony at State PCR evidentiary hearing
reveals that he may have advised, in a rushed matter, an
appeal to Petitioner. Trial counsel's testimony regarding
direct appeal is inconsistent and lacking credibility. Trial
counsel admits that he never discussed filing an appeal with
Petitioner. Then claims that following Petitioner's
conviction he “very quickly” told Petitioner he
had a right to appeal and advised Petitioner “it must
be done or he (counsel) must be notified within 10 days of
[date of conviction]. Counsel initially unequivocally
testified that Petitioner “didn't tell me he wanted
to appeal, but he did not tell me I do not want to
appeal.” After specifically testifying twice that
Petitioner never told him he didn't want to appeal, trial
counsel claimed that when he asked Petitioner if he wanted
“to appeal, ” Petitioner say, “no.”
Counsel also confirmed that he did not file an appeal on
Petitioner's behalf.

Petitioner testified that he desired an appeal be filed. He
also testified that there were at least two issues he would
have wanted argued on his behalf in a direct appeal. One of
the issues was the “selection of his jury” and
the second was that the lower court erred in overruling his
objections to Nurse Griggs' testimony.

Petitioner testified that trial counsel never discussed a
direct appeal with him and that he did not realize at the
time that trial counsel did not file an appeal on his behalf.

In light of the testimony heard at the PCR evidentiary
hearing, Petitioner asserts that the PCR court erred in
finding that he knowingly and voluntarily waived his right to
a direct appeal of his convictions and sentences.

Petitioner further asserts that the PCR court's finding
that trial counsel's actions were reasonable under the
circumstances and did not fall below professional norms of
reasonableness was an unreasonable application of as well as
an objectively unreasonable determination of facts in light
of trial counsel “sworn” inconsistent, incredible
testimony, Strickland v. Washington, 466 U.S. 668
(1984); Roe v. Flores-Ortega, 528 U.S. 470 (2000),
clearly established federal law.

Thus, counsel's failure to file a notice of appeal, as
well as consult with Petitioner deprived Petitioner of his
Sixth and Fourteenth Amendment right to the effective
...

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